recognizing that ineffective assistance claims based on uncalled witnesses require a heavy showing by the petitioner because the court is forced to make a hypothetical determination of how an uncalled witness may have testified
How later courts described this case
- recognizing that ineffective assistance claims based on uncalled witnesses require a heavy showing by the petitioner because the court is forced to make a hypothetical determination of how an uncalled witness may have testified
- counsel found effective even though jury pool challenge he rejected would have in no way contradicted alibi defense presented
- “All we have is what (the petitioner) says they would have said. . . . [A]ny inadequacy in [the petitioner’s] representation that is attributable to his failure to interview [certain nontestifying witnesses] must be deemed completely nonprejudicial . . . given his utter failure to establish at his federal habeas hearing that the nontestifying [witnesses] would have corroborated [his] alibi defense.”
- rejecting “strict scrutiny” of counsel’s performance in a capital case
Written by the judges who cited it.
The opinion
COLEMAN, Circuit Judge,
dissenting.
If ever a coldblooded murder, committed in the course of a coldblooded robbery, deserved the death penalty this is it. The Supreme Court refused to interfere ( 441 U.S. 916 , 99 S.Ct. 2016 , 60 L.Ed.2d 388 ). Chief District Judge Ready denied habeas corpus relief. Now, this Court marches Washington out of the gas chamber on the entirely untenable argument that the trial judge violated the federal constitution in his Instruction No. C-20 and that a jury might have considered Washington’s irresponsible attitude toward the rules of society, and his violation of the law and his self-indulgent procreation of an illegitimate child as a mitigating factor in prescribing the penalty for- this inexcusable murder committed during the course of a callously planned robbery. With deference, I believe that the majority is bad wrong on both points.
*1379 I
The Instruction was not Unconstitutionally Erroneous
In the opening portion of the instruction the jury was told that it must “consider the detailed circumstances of the offense for which the defendant was convicted and the defendant himself (emphasis added).”
Chief Judge Keady held that the state trial court had committed no error of a constitutional nature:
“Specifically, the jury was not precluded from considering all mitigating factors shown by the evidence, whether or not they were directly brought to the attention by the court’s instruction C-20. It is to be noted that the court excluded no evidence which was offered in mitigation, and that instruction C-20, while it expressly required the jury to ‘consider only’ one or more of the two pertinent statutory aggravating circumstances before voting the death penalty, did not restrict the jury to considering only petitioner’s lack of significant history of prior criminal activity and his age as mitigating circumstances. Moreover, this instruction was not objected to at trial, and under it the jury was free to consider all mitigating evidence which petitioner saw fit to offer.”
This instruction was not given until the juiy had heard every extenuating word offered on behalf of the defendant. None of it was excluded. The majority concedes that, indeed, every bit of it was argued to the jury.
Competent counsel did not object to the instruction or any part of it. It is obvious that everybody understood what the instruction meant and that the issue of mitigation was presented accordingly.
The majority concedes that the law requires that instructions be considered as a whole but nevertheless attempts to separately and individually parse the various parts of this instruction in isolation, all in the attempt to hoist the murderer out of the gas chamber on an invisible non-existent web.
I cannot agree to thwarting a death penalty in such a manner.
II
There was no Mitigation in what the Majority Chooses to Assert “Might Have Been” Mitigating
Since April 5, 1956, it has been legally impossible for a person to contract a common law marriage in Mississippi. Such marriages are absolutely void. 1 For over a hundred years it has been a violation of Mississippi law for individuals to unlawfully cohabit, whether in adultery or fornication. 2 Neither society nor Mississippi law has ever favored the procreation of illegitimate children by self-indulgent fathers.
All this being so, I simply cannot understand how the majority holds that violating the law by living together in an illegal relationship and fathering an illegitimate daughter “might be” a mitigating factor in a coldly planned robbery wherein the defendant chose to shoot the victim’s entrails out and then coolly reloaded his shotgun as if he had done no more than kill a rabbit.
The only sensible conclusion is that the jury of citizens believed that Washington had shown no more regard for human life than he had for the views of society or the laws to which he had theretofore paid no attention, including the law against the possession of marijuana.
This is a sad day for Mississippi’s efforts to adequately punish a fiendish murder. Indeed, it is a sad day for Mississippi’s efforts to enforce any of the criminal laws for which it has exclusive jurisdiction.
I respectfully dissent and I am constrained to express the hope that the State *1380 will seek en banc review of so much of this decision as voids the death penalty.
. Chapter 239, Miss.Laws 1956; Section 93-1-15, Mississippi Code 1972.
. Chapter 64, Art. 1, Hutchinson’s Mississippi Code of 1848; Section 97-29-1, Mississippi Code 1972.